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Kee Teitzei 5774-2014

“Restoring Lost Possessions–Revisited”

by Rabbi Ephraim Z. Buchwald

Among the 74 commandments (47 negative and 27 positive) that are found in parashat Kee Teitzei is the mitzvah of restoring lost articles to their rightful owners. This mitzvah has already been discussed in Kee Teitzei 5767-2007.

The Torah in Deuteronomy 22:1 states, לֹא תִרְאֶה אֶת שׁוֹר אָחִיךָ אוֹ אֶת שֵׂיוֹ נִדָּחִים וְהִתְעַלַּמְתָּ מֵהֶם, הָשֵׁב תְּשִׁיבֵם לְאָחִיךָ, You shall not see the ox of your brother or his sheep or goat cast off, and hide yourself from them, you shall surely return them to your brother.

The Code of Jewish Law states that someone who finds a lost object, even in the public domain, is required to try to restore it to its rightful owner. If the owner is not known, then the finder must care for the lost object and guard it until the owner comes to claim it. This is what is implied in the Torah’s commandment in Deuteronomy 22:3 וּמְצָאתָהּ, לֹא תוּכַל לְהִתְעַלֵּם,…and you find it–you shall not look away and ignore it.

The Torah, in Deuteronomy 22:2, provides additional instructions:

וַאֲסַפְתּוֹ אֶל תּוֹךְ בֵּיתֶךָ, וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ וַהֲשֵׁבֹתוֹ לו, …then gather it inside your house and it shall remain with you until your brother inquires after it, and you return it to him. The rabbis derive from this verse that the finder must be proactive, and make a concerted effort to alert the rightful owner of the loss by publicly announcing that the object has been found.

From the words in Deuteronomy 22:2, “Until your brother inquires after it,” it is deduced that the rightful owner must prove his ownership by properly identifying the lost object. It is preferable that the claimant provide clear identification regarding the lost object–such as size, shape, color, ornamentation and/or the location where it was lost. Objects that do not have specific identifications can be considered ownerless, since the owners have probably given up hope of ever retrieving them, at which time the finder can acquire the item as his own. The Code of Jewish Law, however, recommends that the finder go beyond the letter of the law and try to restore even the lost objects that lack identifying signs.

One who finds a lost object is required to return it without compensation, aside from expenditures incurred in order to publicize the loss or to care for the lost object (e.g. safe deposit vault, feeding an animal, etc.). If the lost item is perishable, it is proper to sell it and give the proceeds to the owner, to ensure that at least the basic value is preserved. Lost produce that would spoil, or animals that need to be fed, are to be sold immediately, since they would have no value should the owner appear only after a long period of time.

One of the most important elements in deciding the rightful ownership of a lost article is the issue of יֵיאוּשׁ –“Yei’ush”–-determining whether the original owner despaired of ever recovering the lost article.

Both Maimonides in Laws of Robbery and Lost Property 6:2 and 11:11, as well as Rabbi Joseph Caro, in the Code of Jewish Law, Choshen Mishpat 259:7, declare: “He who saves [retrieves] valuables from a lion or a bear, or from the bottom of the sea or from idolaters, they belong to him, even though the original owner stands and protests.”

After the Holocaust, the concept of “Yei’ush,” played a most significant role in determining the rightful owner of property lost during the Shoah, as well as the famous Sotheby’s case.

A fascinating case regarding “Yei’ush” is recorded in Rabbi Irving J. Rosenbaum’s collection of responsa entitled, The Holocaust and Halakhah.

In February of 1942, the Nazis decreed that the Jews of Kovono, Poland must surrender all their Hebrew books to the authorities or face death. Some of the books that were gathered in this raid were extremely valuable.

Rabbi Rosenbaum recounts the story of a Jewish Ghetto police officer, Yitzchak Greenberg, who placed himself in great personal danger to save some of these prized books. Greenberg buried a chest filled with some of the rarest and most prized books. The hope was that any surviving residents of the Ghetto would return to reclaim these items.

After the war, some of those who survived returned to Kovono to attempt to locate things that they had hidden during the war. One such searcher unearthed the chest in which the valuable books had been hidden. He immediately realized the treasure he had discovered. He declared them to be his based on Jewish law that maintains that anyone who finds property which has been abandoned, may subsequently claim ownership of it.

It did not take long for word of the find to spread among the other survivors of the community. One of the men recognized that among the books were some that had belonged to his family, and even had inscriptions with his family member’s names, and insisted that the books be returned to him. The finder, however, asserted that, since the books had been abandoned, he had the right to claim ownership.

To determine who was the rightful owner, both parties approached Rabbi Ephraim Oshry, one of the few European rabbis and Halachic authorities to survive the Holocaust.

Rabbi Irving J. Rosenbaum writes about the rabbi’s decision:

In his decision, Rabbi Oshry cites the Talmud Baba Kamma 114a, “He who saves articles of value, from the river, or from a marauding band, or from robbers, if the owners have abandoned hope of recovery, they belong to him.” Rashi explains that in all these cases, it is assumed that there had been “Yei’ush,” abandonment of hope of recovery, and therefore the finder has acquired legal ownership through a combination of יֵיאוּשׁ, “Yei’ush” and possession, שִׁינּוּי רְשׁוּת, “Shinui reshut.”

Rabbi Oshry determined that once the Nazis had stolen the books, the original owners had no reason to ever expect that they would be returned. Therefore, it may be readily assumed that they had given up hope of ever recovering the books, since in addition to their possessions, the Jews’ entire earthly existence was at the mercy of the Nazis. Citing the Rashbam, Rabbi Oshry maintained that in the event of military conquest, there is no requirement of “Yei’ush,” since under the laws that govern armed conflict, conquering armies acquire ownership of all spoils of war.

Complicating the issue was the opinion of Tosafot found in Baba Kamma 114b, which speaks directly to the issue of stolen books, specifically, and suggests that even when stolen by non-Jews, there is no automatic despair, since there is no resale market for Jewish books except for the Jewish market. Therefore, the owner retains hope that he may one day be able to repurchase them.

Rabbi Oshry, however, explained that the above opinion does not apply in this case. Since the Nazis intended to destroy the books to use them to make paper, the owner would not have the opportunity to repurchase them. Consequently, there was never any hope of retrieving them.

While Rabbi Oshry did entertain several other scenarios where the original owner could reclaim the books, Rabbi Oshry, nevertheless, concluded, that in all likelihood, the original owner had abandoned any notion that he would be able to recover his property. Since the books were now in the possession of he who found them, they were now the finder’s property in the eyes of Jewish Law.

According to the opinion of the Recanati, restoring a lost article is a mitzvah not to be taken lightly. The Recanati underscores the fact that some people value their possessions so profoundly, that they often regard their property to be of equal value to their lives. Consequently, when they lose something, they feel that part of their life has been lost. Therefore, a person who restores a lost article, may actually be restoring a person’s life. That is why the authorities highly recommend that, even if the finder has legal rights to keep the found article, it be returned its original owner, as a kindness, beyond the letter of the law.

May you be blessed.